DOJ ‘Reviewing’ Harvard’s Offer of Access to Student Records

The Department of Justice is “reviewing” Harvard's offer on Friday to give the federal government access to redacted student records as part of its investigation into the College’s admissions practices, according to a department spokesperson.

Seth P. Waxman ’73, a partner at the law firm representing Harvard, wrote in a letter to the Justice Department Friday that Harvard would provide redacted versions of “all of the documents sought” by the Department. The records, Waxman wrote, “include some of the most sensitive information with which Harvard has been entrusted by its students and applicants.”

In the letter, he invited government lawyers to view the documents at the law firm WilmerHale’s Washington, D.C. office during the office’s business hours, instead of allowing the Justice Department to copy the documents.

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The Justice Department had threatened to sue Harvard if it it did not comply with its request for documents by Dec. 1. But Harvard’s new plan presents “a potential path forward,” Justice Department spokesperson Devin M. O’Malley wrote in an emailed statement Friday.

“The Department of Justice takes seriously any potential violation of an individual’s civil and constitutional rights. We are pleased that Harvard today indicated it too takes this matter seriously,” O’Malley wrote. “The Department is reviewing the University’s response and declines comment at this time.”

The Justice Department began investigating allegations that Harvard’s admissions processes unfairly disadvantage Asian-American applicants this summer, worrying critics who say the investigation could threaten affirmative action policies in place across higher education. The government is seeking the student records as evidence in the investigation.

In his letter, Waxman condemned the Justice Department’s warning that it could take legal action against the University.

“If the Department follows through on its threat of litigation, it is the Department that will needlessly be delaying the resolution of this matter,” he wrote.

In letters sent to Harvard’s lawyers, the federal government has previously said the University may be violating Title VI, which bars programs receiving federal funding from discriminating based on race. In an emailed statement Friday, University spokesperson Melodie L. Jackson wrote that Harvard believes that its offer to the Justice Department is “in full compliance with our legal obligation under Title VI.”

Friday is the second time Harvard has offered up these student records to defend its admissions practices. In Oct. 2016, Harvard informed hundreds of thousands of former applicants to the College that their “academic, extracurricular, demographic, and other information” would be used in the discovery period of a separate lawsuit accusing the College of discriminating against Asian-American applicants.

Waxman wrote in the letter Friday that the University does not believe the Justice Department should be able to access personal information contained in the requested student records.

“Harvard is hard-pressed to identify a reason why the Department would need, for example, the names, personally identifying information, and other highly sensitive personal information of its applicants and students,” Waxman wrote. “I must conclude by reiterating my surprise at the course the Department has chosen to pursue.”

Waxman’s letter Friday follows a series of communications between Harvard and the Justice Department in October and November. In the letters, Harvard argued the investigation was “exceptionally unusual” and requested a confidentiality agreement to protect sensitive information in the documents after the federal government requested student records.

The Justice Department denied the request. In a Nov. 17 letter to Harvard’s lawyers, Matthew J. Donnelly, a Civil Rights Division attorney for the Department of Justice, wrote that a confidentiality agreement would be unnecessary given the Department protects confidential information as standard practice.